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Chromosome crime fighters

Exploring the promise and possible peril of DNA screening

In 1987, an 18-year-old Montana boy named Jimmy Ray Bromgard was sentenced to forty years in prison for a crime he did not commit: the rape of an eight-year-old girl. As he adjusted to the harsh life of Montana’s Deer Lodge prison—a life in which Bromgard faced the occasional fight with convicts who, he said, “wanted to go beat up the child molester”—he planned on spending the rest of his life in prison. He would have had a shot at parole had he agreed to enter a program for sex offenders, but Bromgard couldn’t do it. He couldn’t sit there and say that he had raped a young girl and that he was sorry when he had committed no such crime. And then one night, he watched a television news program in his cell block which described a New York-based team of exoneration lawyers and students known as the Innocence Project. The program described how the Innocence Project gathered DNA samples from old criminal cases and used the DNA to exonerate innocent prisoners languishing behind bars. Bromgard contacted the Innocence Project, which was able to track down the DNA samples from his court case in the District Attorney’s office in Billings. On Oct. 1, 2002, Jimmy Ray Bromgard was proven innocent by DNA evidence and was released with the state’s apologies for his fifteen years of confinement.

Bromgard spoke at a University of Montana Law School forum on Tue., March 18, 2003. He was joined by Peter Neufeld, co-director of the Innocence Project. Neufeld is the lawyer who got Bromgard free, and he and colleague Barry Sheck were voted runners-up for the lawyer of the year award by the National Law Journal in 1999. Sitting on a panel in the UM Law School’s Castles Center, Bromgard and Neufeld represented two of the foremost examples of the promise of DNA testing in crime-solving, though they are not alone. In fact, Bromgard became the 111th person to be freed by the Innocence Project through DNA evidence after being falsely convicted.

Neufeld summarized the way in which DNA technology could radically alter the United States criminal justice system, saying, “Obviously, if we can have more scientifically reliable methods for getting at the truth, we’ll all be better served.”

The more scientifically-reliable method Neufeld refers to is DNA screening, and it is an approach that is making significant headway on a national level, due largely to the efforts of Attorney General John Ashcroft.

Ashcroft and the Bush administration have requested $1 billion over the next five years to increase DNA analysis and eliminate a backlog of DNA that has not yet been analyzed, the Associated Press reported on March 12.

Ashcroft has been singing the praises of DNA analysis since an Aug. 1, 2001 press conference, wherein he stated, “When all the relevant genetic markers contained in DNA are used, the reliability of the identification of the perpetrator of a crime is 100 percent. In such cases, DNA analysis identifies the guilty party with absolute certainty, and that certainty excludes all other persons.”

The promise of DNA testing seems a criminal justice utopia, i.e., it doesn’t allow mistakes to be made. Yet, DNA must still be analyzed by human beings, and this human element of the technology makes Dr. Luana Ross, associate professor of women’s studies at the University of Washington, somewhat skeptical. Ross sat in on the UM panel alongside Bromgard and Neufeld.

For Jimmy Ray Bromgard, the “science” that led to his conviction was in the hands of the former director of the Montana state crime lab, Arnold Melnikoff. Melnikoff testified that the chances of hairs found at the scene belonging to someone other than Bromgard were one in 10,000.

“In the newspapers the day after my trial,” said Bromgard, “several of the jurors told them that they were convinced I was guilty as soon as [Melnikoff] had gotten to talk. So Arnold Melnikoff is the one who sent me to jail.”

Another Montanan, Chester Bauer, was convicted of rape in 1983 on Melnikoff’s hair sample testimony, and has since been exonerated. Bauer has filed a lawsuit against Melnikoff and the state seeking damages.

Currently Bromgard and Neufeld are asking Montana Attorney General Mike McGrath to reopen every case in which Melnikoff’s testimony played an important role. Melnikoff’s apparently shoddy science points to a problem that even DNA technology may not be able to eliminate: human error.

Neufeld expressed his concern with the human aspect of “unquestionable” science, saying, “In the criminal justice system, there is no objective arbiter, if you will…Consequently, we need some other kind of vehicle, outside of the court, which can evaluate what is valid and reliable and what isn’t. Certainly that would be helpful here in Montana.”

If Ashcroft receives the funding and support he needs, the “other kind of vehicle” may turn out to be a centralized DNA database that can be utilized by crime labs all over the country. Neufeld has some practical questions about the maintenance of such a database.

“John Ashcroft does not just want to have criminals in the database,” he says. “John Ashcroft also wants to have arrestees who haven’t been convicted of any crime in the database…Given the current racial profiling of black and brown people in this country, I would be very worried about having arrestees in the database that aren’t convicted, because of my familiarity with pretext arrests by law enforcement personnel, particularly on the nation’s highways …I’d also be very reluctant to have it expanded to people who volunteered to give samples so they could be excluded in a particular case, and then when they are excluded, nevertheless the police retain their genetic material and keep those genetic profiles on file,” Neufeld said.

Asked to comment on Ashcroft’s proposals, Neufeld took a poll of the nearly 100 forum attendees.

“How many folks here would like to have their own genetic profile on file with the Justice Department in Washington?” he asked, looking for a show of hands.

No one raised their hand.

While Jimmy Ray Bromgard would still be in prison if it wasn’t for DNA testing, he too expressed his concerns as to where a DNA database might lead.

“I could see if you go to prison maybe having to give DNA, but not everybody, because that’s just the government wanting to keep track of everybody,” he said.